POLICY MEMORANDUM - Scottish Parliament Rights... · POLICY MEMORANDUM INTRODUCTION 1. This document relates to the Convention Rights (Compliance) (Scotland) Bill introduced in ...

This memorandum relates to the Convention Rights (Compliance) (Scotland) Bill (SP Bill 25) asintroduced in the Scottish Parliament on 10 January 2001

SP Bill 25-PM 1 Session 1 (2001)

CONVENTION RIGHTS (COMPLIANCE) (SCOTLAND)BILL

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POLICY MEMORANDUM

INTRODUCTION

1. This document relates to the Convention Rights (Compliance) (Scotland) Bill introduced inthe Scottish Parliament on 10 January 2001. It has been prepared by the Scottish Executive tosatisfy Rule 9.3.3(c) of the Parliament’s Standing Orders. The contents are entirely theresponsibility of the Scottish Executive and have not been endorsed by the Parliament. ExplanatoryNotes and other accompanying documents are published separately as SP Bill 25–EN.

GENERAL POLICY OBJECTIVES OF THE BILL

2. The Bill is designed to ensure that certain elements of Scots civil and criminal law arecompatible with the European Convention for the Protection of Human Rights andFundamental Freedoms (“ECHR”). The Bill also proposes to confer a new power on the ScottishMinisters which will extend the circumstances under which they are able to make remedial orders toremedy any incompatibility with ECHR.

3. The United Kingdom ratified the Convention in 1951 and is therefore required to give effectto the rights and freedoms that it sets out. Since 1966, British citizens have had the right to apply tothe European Commission of Human Rights if they believe that their rights under the Conventionhave been infringed by the State. The Commission ceased to exist from November 1998 andapplications may now be made direct to the European Court of Human Rights once domesticremedies have been exhausted.

4. The Scotland Act 1998 and the Human Rights Act 1998 (“HRA”) give further effect toConvention rights in domestic law. The relevant provisions of the Scotland Act are sections 29, 53and 57(2). Section 29 provides that it is outwith the legislative competence of the ScottishParliament to enact a provision that is incompatible with the Convention rights. Section 53, as readwith section 54, provides in effect that the only functions transferred to the Scottish Ministers underthat section are those which are to be exercised compatibly with the Convention rights. Section57(2) provides that a member of the Scottish Executive has no power to make any subordinatelegislation, or to do any other act that is incompatible with any of the Convention rights. By virtue



of section 126(1) of the Scotland Act, the expression “Convention rights” is defined as having thesame meaning as in section 1(1) of the Human Rights Act:

“1. - (1) In this Act “the Convention rights” means the rights and fundamental freedoms setout in-

(a) Articles 2 to 12 and 14 of the Convention,

(b) Articles 1 to 3 of the First Protocol, and

(c) Articles 1 and 2 of the Sixth Protocol,

as read with Articles 16 to 18 of the Convention.”

5. Acts of the Scottish Parliament or subordinate legislation made by the Scottish Ministers andany exercise of functions by the Scottish Ministers may be challenged in any civil or criminalproceedings before Scottish courts and may be struck down as “ultra vires” if they are found to beincompatible with the Convention rights.

6. Those provisions of the Human Rights Act not already in force took effect from 2 October2000. That Act provides that it is unlawful for any public authority anywhere in the UnitedKingdom to act in a way which is incompatible with the Convention rights. “Public authority” isdefined in section 6(3) of the HRA and includes a court or tribunal and any body carrying outfunctions of a public nature (e.g. a local authority).

7. The Scottish Executive has conducted a detailed ECHR audit across all its departments toseek to identify legislation or acts of the Executive which may be at risk of being found to beincompatible with the Convention rights. The audit took into account those ECHR challengeswhich have been raised in proceedings in Scotland since devolution. As a result of the audit,Ministers considered for each issue whether it would be appropriate to take administrative orlegislative action. The Bail, Judicial Appointments etc. (Scotland) Act 2000 introduced the firstlegislative changes to be made as a result of the audit and successful challenges in domestic courts.This Bill proposes further legislative change where Ministers consider that early action is required.

PART 1 - PRISONERS AND PAROLE

Release of Life Prisoners

8. The Executive proposes the introduction of a system for determining the release of adultmandatory life prisoners (“AMLPs”) which will bring the arrangements for those prisoners into linewith the existing statutory arrangements for other life prisoners. This will involve a “punishmentpart” (or tariff) being set in open court and a review at the expiry of the punishment part to



determine whether or not the prisoner should continue to be confined for the protection of thepublic. The Parole Board sitting as a tribunal would carry out the review.

9. An AMLP is a person sentenced to an indeterminate term (a “life sentence”) for a murdercommitted when aged 18 years old or over. Such a sentence is mandatory in that the court isrequired to impose it by virtue of primary legislation.

Present Arrangements – Adult Mandatory Life Prisoners

10. The current arrangements governing the release of AMLPs appear in the Prisons (Scotland)Act 1989 (“the 1989 Act”) and the Prisoners and Criminal Proceedings (Scotland) Act 1993(“the 1993 Act”). The relevant provisions in the 1989 Act were repealed by the 1993 Act.However, the provisions in the 1993 Act apply only to persons sentenced on or after 1 October 1993(the commencement date of the new provisions). The provisions of the 1989 Act continue to applyto persons sentenced before that date.

11. Section 26 of the 1989 Act (as read with sections 53 and 117 of the Scotland Act 1998)confers power on the Scottish Ministers to release such a prisoner following a recommendation ofthe Parole Board and after consultation with the Lord Justice General and, if available, the trialjudge. Section 1(4) of the 1993 Act (as read with the same sections of the Scotland Act) makessimilar provision in relation to prisoners sentenced on or after 1 October 1993. The power torelease an AMLP under both the 1989 Act and the 1993 Act is entirely at the discretion of theScottish Ministers.

12. Under the Criminal Procedure (Scotland) Act 1995, a judge may make a recommendationon sentencing an AMLP as to the minimum period which should be served before release isconsidered but is under no obligation to do so. It is open to the judge to take into account mattersrelating to both punishment and risk when making such a recommendation. This power is rarelyused (in under 5% of murder cases).

The Preliminary Review Committee

13. Under existing arrangements, a non-statutory committee, the Preliminary ReviewCommittee (“PRC”) recommends to the Scottish Ministers the date for the first review by the ParoleBoard of an AMLP’s suitability for release on life licence. This Committee meets in private andconsiders each case after approximately four years have been served. A senior official of theScottish Executive Justice Department chairs the Committee and the other members are a HighCourt judge, the chairman of the Parole Board, a psychiatrist who is a member of the Parole Boardand a senior official from the Scottish Prison Service. The Committee considers a variety of reportsrelating to each prisoner, including one from the sentencing judge, pre-trial psychiatric reports andreports relating to the prisoner’s response in custody.



14. The Scottish Ministers reach their decision on the timing of the first review by the ParoleBoard in the light of the Committee’s recommendation and in doing so take into accountrepresentations from the prisoner.

The Parole Board

15. The Parole Board carries out the review of an AMLP’s suitability for release on life licence.In its consideration of a case the Board focuses on whether or not the risk to the public associatedwith the prisoner’s release on life licence is acceptable. The Board makes a recommendation to theScottish Ministers about whether or not the prisoner should be released. The Scottish Ministers arenot empowered to release an AMLP (except on compassionate grounds – see Section 3 of the 1993Act) unless this has been recommended by the Board.

16. If the Parole Board recommends that an AMLP should be released on life licence theScottish Ministers are required by law to obtain the views of the judiciary before taking theirdecision. The Scottish Ministers look to the judiciary for advice on whether or not the criminaljustice requirements of punishment and deterrence will have been satisfied if the prisoner is releasedin line with the Parole Board’s recommendation. The prisoner is informed of the Parole Board’srecommendation and the judiciary’s views and is invited to make representations before the ScottishMinisters take their decision. The Scottish Ministers are not obliged to accept the Parole Board’srecommendation or the judiciary’s views but must exercise their discretion reasonably.

17. If the Parole Board does not recommend an AMLP’s release or the Scottish Ministersdecline to accept a favourable recommendation from the Board, further reviews of a prisoner’s casewill take place either biennially or annually, normally depending on a prisoner’s security category.

18. The procedures relating to the release of AMLPs are also currently affected by what isknown as the ‘20 year policy’, which has operated since 1984. The policy, which was announced bythe then Secretary of State, Mr George Younger, on 18 December 1984, and endorsed by successiveadministrations, applies to prisoners sentenced to life imprisonment for the murder of a policeofficer, murders by terrorists, the sexual or sadistic murder of a child and murders committed by useof a firearm in the commission of a crime. Under the policy prisoners convicted of such murderscan expect to spend not less than 20 years in custody unless there are exceptional circumstances.

Present Arrangements – Designated Life Prisoners

19. A designated life prisoner is a discretionary life prisoner or a person convicted of a murdercommitted when under the age of 18 years (“an under 18 murderer”). A discretionary life prisoneris a person sentenced to life for a crime other than murder where the Court has used its discretion toimpose a life sentence. The arrangements for the sentencing and release of such prisoners are dealtwith in section 2 of the 1993 Act.

20. Under the existing law a sentencing judge has the discretion to set a “designated part” (theperiod required to be served to satisfy punishment and deterrence) when sentencing the prisoner. In



determining the length of the designated part the court considers the seriousness of the offence (andany others associated with it), previous convictions, and where appropriate the stage at which theoffender indicated his intention to plead guilty, and the circumstances in which that indication wasgiven. Guidance on the way in which these factors should be applied is set out in case law. Thedesignated part is part of the prisoner’s sentence and is appealable. If a judge does not set such apart he must give his reasons for not doing so. Case law has established that the judge is required toset a designated part unless he considers that the case is exceptional and that the appropriate“punitive period” for a prisoner to serve in prison is the rest of his natural life (see O’Neill v HMA1999, SCCR, 300).

21. After the designated part expires (and at 2 yearly intervals thereafter) by virtue ofsection 2(6) of the 1993 Act, the prisoner is entitled to require the Scottish Ministers to refer hiscase to the Parole Board. In practice, cases are referred automatically and will be reviewed morefrequently if the Parole Board recommends it. If the Parole Board is satisfied that it is no longernecessary for the protection of the public that the prisoner should continue to be confined it willdirect the Scottish Ministers to release him. For these purposes the Board is constituted as aDesignated Life Tribunal with a holder or former holder of judicial office in the chair.

22. Both designated life prisoners and AMLPs, when released, are released on life licence. Aprisoner released on life licence must comply with the conditions contained in the licence. Theserequire him, inter alia, to be under the supervision of a named supervising officer (a social worker)and to comply with that officer’s instructions. They further require him to be of good behaviourand keep the peace and not to travel outwith Great Britain without the approval of his supervisingofficer. Additional conditions, for example, relating to alcohol and drug counselling, may beincluded in a licence. A prisoner who fails to comply with the conditions of his licence rendershimself liable to recall to custody.

ECHR Background

23. Existing ECHR case law has maintained that there is a justifiable difference in the treatmentof mandatory and discretionary life prisoners i.e. a prisoner given a life sentence for a crime otherthan murder. The case of Thynne, Wilson and Gunnell v the UK [1990] (“Thynne”) held that,unlike mandatory life sentences, a discretionary life sentence in the UK is imposed not onlybecause the offence is a serious one but because, in addition to the need for punishment, the accusedis considered to be a danger to the public. Therefore such sentences were composed of a punitiveelement and a security element. Once the punitive element of the sentence had expired, Article 5(4)of the Convention required that the prisoner’s continued detention should be reviewed by a court-like body at reasonable intervals.

24. The case of Weeks v the United Kingdom [1987] (“Weeks”) has also established that theParole Board could not be considered to be a “court-like body” unless it had the power to deciderather than advise Ministers on release. The provisions of the 1993 Act relating to discretionary lifeprisoners were enacted in consequence of the decisions in Thynne and Weeks. The arrangements forthe release of those prisoners had previously been the same as the current arrangements for AMLPs.



25. In Wynne v UK [1994] (“Wynne”) the European Court of Human Rights confirmed that amandatory life sentence belonged to a different category from a discretionary life sentence since itis imposed automatically as a punishment for the offence of murder irrespective of considerationsabout the danger of the offender. Therefore, in mandatory life sentences, the original criminal trialand the appeals system satisfy the guarantee of Article 5(4). The Court held that there was noadditional right to challenge the lawfulness of continued detention.

26. In Singh and Hussein v UK [1996] (“Singh”), the European Court found that the sameprinciples set out in Thynne and Weeks applied to persons who were sentenced to an indeterminateperiod for murders committed by them when they were under the age of 18. The court found thatan indeterminate term of detention for a convicted young person, which may be as long as thatperson’s life, could only be justified by considerations based on the need to protect the public.Those considerations centre on an assessment of the young offender’s character and mental stateand of his or her resulting dangerousness to society and therefore must, of necessity, take intoaccount any development in the young person’s personality or attitude as he grows older. Againstthis background, that the decisive ground for continued detention was a characteristic which wassusceptible to change with the passage of time, the court held that such prisoners were entitledunder Article 5(4) to take proceedings to have the grounds for their detention reviewed by a court atreasonable intervals. As a result of the decision in Singh, in October 1997, section 16 of the Crimeand Punishment (Scotland) Act 1997 amended section 2 of the 1993 Act to extend thediscretionary life prisoner provisions to under 18 murderers.

27. In Ryan v UK [1998], which involved the case of a prisoner sentenced in England to custodyfor life for a murder committed under the age of 21, the European Commission of Human Rightsreiterated the court’s earlier comments in Wynne. The Commission noted that “the administrative”arrangements for setting a tariff and thereafter considering the safety and acceptability of release,fall within the scope of the punishment imposed at the original trial.

28. More recently, in the case of T v UK [1999], the European Court of Human Rights foundthat Article 6 applies to the process of setting a punishment period or tariff for a discretionary lifeprisoner or an under 18 murderer. The Court found that the punishment period should therefore befixed by a court and not by the executive.

29. In terms of existing Strasbourg jurisprudence, the present legislation and procedures relatingto AMLPs appear, therefore, to be compatible with Articles 5(4) and 6 of the ECHR. However, theexisting arrangements for determining the release of AMLPs which involve the Scottish Ministersdeciding on the point in time at which a prisoner’s suitability for release should first be reviewed bythe Parole Board and the Board considering the risk associated with release and making arecommendation to the Scottish Ministers, mean that, in practice, the adult mandatory life sentencecould be said to be effectively split into a punishment period and a risk period. The ScottishMinisters therefore consider that there is a risk of a domestic court taking the view that, in practice,the arrangements for the release of AMLPs are no different from those applying to other prisonerssentenced to indeterminate terms of imprisonment. In those circumstances, a domestic court wouldfind a breach of Article 5(4) (since after the expiry of the punishment period the question of risk



must be considered by a court-like body) and a breach of Article 6 (since the punishment part wouldrequire to be set by a court).

Proposed Arrangements

30. The process for setting the punishment part requires to comply with Article 6. After theexpiry of the punishment part, Article 5(4) requires the question of risk to be determined by a courtor court-like body at reasonable intervals.

31. In view of the terms of the Convention and the perceived risk of successful challenge, theExecutive proposes to bring the arrangements for the sentencing and release of AMLPs into linewith the current statutory provisions that apply to other life prisoners i.e. prisoners sentenced for amurder committed before the age of 18 and prisoners who have received a discretionary lifesentence. In future the same release arrangements would therefore apply to all murderers and lifesentence prisoners.

32. The mandatory life sentence would be split into a punishment part and a risk period. Thepunishment part would be set in open court by the sentencing judge and open to appeal. After theexpiry of the punishment part, and at reasonable intervals thereafter, the prisoner would be entitledto have the grounds for his continued detention reviewed by a court-like body. This would be doneby the Parole Board sitting as a tribunal, who would have the power to direct the Scottish Ministersto release the prisoner. The 20-year policy (referred to in paragraph 18 above) would no longeroperate since it is a policy operated by the Scottish Ministers. Under the proposed arrangements thepunishment part would be set by the court and Scottish Ministers would no longer have anydiscretion to determine the period that should be served in custody by the prisoner. The particularseriousness of the types of murder covered by the policy would be reflected, as appropriate, in thepunishment part set by the court. In addition, since the functions of the PRC would no longer berequired, that body would be dissolved.

33. Under the present procedures, situations arise where a prisoner is recommended for releaseby the Parole Board, because it considers that the risk to the public is acceptable, but it thentranspires that release would be at a stage when neither the judiciary nor the Scottish Ministers, inthe light of the judiciary’s views, consider that the criminal justice requirements of punishment anddeterrence would have been satisfied. This means that nugatory reviews of prisoners’ suitability forrelease are undertaken. In addition to satisfying the requirements of ECHR, the proposed changeswill prevent such situations arising. They will provide prisoners with greater clarity as to theminimum period that they will require to serve in custody before consideration is given to theirrelease and will allow the Scottish Prison Service to manage the prisoner’s sentence efficiently andeffectively. There will also be greater clarity for the public and the victim’s family, since thepunishment and minimum period required in prison will be apparent from the outset.

34. The changes proposed are changes in the release arrangements for AMLPs only and, assuch, are neutral so far as the length of sentences is concerned. Sentencing remains a matter for thecourts and it is not expected that the changes proposed would lead to any increase or decrease in theperiod that AMLPs are expected to serve in custody.



35. As mentioned, it is at present open to a judge in sentencing a designated life prisoner not toset a punishment part in exceptional cases where he considers that the prisoner should remain inprison for the remainder of his natural life. The Executive considered whether this provision shouldcontinue to apply and whether it should therefore also apply to AMLPs. Although case law appearsto have established the circumstances under which a judge should make use of the provision not toset a part, there has been a lack of clarity surrounding the operation of this provision in practice.The Executive believes that the system for sentencing life prisoners should be clear and transparentwith no room for misunderstanding. On that basis, the Executive proposes to remove the judges’current discretion not to set a punishment part. Instead, the judge will be required to specify apunishment part, in terms of a specific number of years and months, in every case. If,exceptionally, a judge considered that a particular case required a long punishment period, it wouldbe open to him to specify a period of years which, if appropriate, clearly exceeded the individual’slife expectancy. This will cover the small number of situations where the seriousness of the crimeor the age or health of the individual might make it necessary for the punishment part to be longerthan that individual’s life expectancy. The requirement to specify the length of the period to beserved as punishment will remove any potential misunderstandings about the court’s intentions.

36. The Executive considered whether the legislation should specify the aggravating andmitigating factors a judge should take into account in setting a punishment part. The Executiveconcluded that it was not necessary to do so as the factors, other than risk, which a court will wishto take into account in determining the period are the same as it must consider when setting adeterminate sentence.

Transitional Arrangements

37. In addition to the proposals for the future sentencing and release of adult mandatory lifeprisoners, the Bill also requires to make provision for certain transitional arrangements for existinglife prisoners.

ECHR Background

38. To ensure compliance with ECHR it will be necessary for the new arrangements for therelease of adult mandatory life prisoners to apply to existing AMLPs. All existing AMLPs (around500) would therefore require to have a punishment part set.

39. It was considered whether, to ensure compliance with Article 6, it would be necessary tohold a court hearing for the setting of the punishment part for each existing prisoner or whether itwould be sufficient for the trial judge to set the part as a paper exercise subject to an appeal. Ingeneral, ECHR case law confirms that it may not always be necessary to have an Article 6compliant court at first instance provided that a full appeal on the merits can be made to an Article 6compliant court. However, where the court at first instance is a court “of the classic kind” thenArticle 6 must be fully complied with.



40. The existing jurisprudence and the question of what is meant by a court “of the classic kind”should now be seen in the light of the European Court’s decision in the case of T v UK (1999). TheCourt confirmed the finding of the European Commission for Human Rights that Article 6(1)guarantees certain rights in respect of the determination of any criminal charge and therefore, incriminal matters, covers the entire proceedings including the determination of the sentence. TheCourt found that the fixing of the tariff in England and Wales for under 18 murderers was asentencing exercise and Article 6(1) was applicable. Since the court indicated that the tariff fixingprocedure involved the determination of a criminal charge, the Executive takes the view that theprocedure would be regarded as involving a court “of the classic kind”.

41. Further to the court’s decision in T v UK, the Executive considers that it would be necessaryto allow for a short court hearing for each prisoner who requires to have a punishment part fixedretrospectively. The hearing to set the punishment part would take place before a High Court judgeand the decision would be announced by the judge in open court. The parties to the hearing wouldbe the prisoner and the Crown. The procedure for the hearing would be regulated by the High Courtby rules made by Act of Adjournal.

42. The transitional provisions would also require to be extended beyond existing AMLPs to alimited number of existing designated life prisoners.

43. As noted above, the arrangements for designated life prisoners have already been broughtinto line with ECHR. However, when the legislation was changed in 1993 in relation todiscretionary life prisoners and in 1997 in relation to those serving a sentence imposed as a result ofa murder committed when under the age of 18, a punishment part was fixed by the Lord JusticeGeneral (and in some cases by the Lord Justice Clerk) by means of a paper exercise. There was nocourt hearing since this did not appear to be necessary in terms of ECHR jurisprudence at that time.However, the development of the law in 1999, in terms of the decision in T v UK, indicates that acourt hearing is required to ensure compatibility with Article 6. The Executive therefore takes theview that the Scottish Ministers would be acting incompatibly with ECHR if they continued torecognise punishment parts set as a result of a paper exercise. As a result, discretionary lifeprisoners and prisoners serving a sentence in relation to a murder committed whilst under 18 whoreceived a punishment part under the transitional provisions contained in the Prisoners and CriminalProceedings (Scotland) Act 1993 and the Crime and Punishment (Scotland) Act 1997 would alsohave the right to have a punishment part set at a court hearing.

44. The transitional provisions would apply to existing designated prisoners with a paper tariffunless the prisoner had already served the part previously specified before the prisoner’s case wasreferred to the High Court of Justiciary for a hearing to fix a punishment part. Around 20 to 25prisoners are likely to be affected by these provisions.

The Transitional Provisions

45. The transitional provisions in the Bill put the onus on the Scottish Ministers to refer the caseof an existing life prisoner to the High Court for a court hearing to fix a punishment part inreasonable time. The provisions also provide that an existing discretionary life prisoner or under 18



murderer who is in possession of a certified designated part (received under the transitionalprovisions in the 1993 and 1997 Acts, referred to above) may choose to waive his right to a hearingto fix a punishment part, provided that he has obtained legal advice or has declined to obtain suchadvice. The waiver would have to be provided in writing to the Scottish Ministers. It is intendedthat the Scottish Ministers would write to the prisoners involved and explain the process wherebythey may have a further court hearing. The prisoners would be given a time limit within which theyshould respond to Ministers. If they did not respond within that period or if they responded to theeffect that they did not want to waive their right to a hearing, the Scottish Ministers would refer thecase to the High Court for a hearing. Prisoners who chose to waive their right would, in effect, havewaived their ECHR right to have the punishment part set by an Article 6 compliant court at firstinstance.

46. The Executive considers that the provision of a waiver is appropriate for existing lifeprisoners, who may be satisfied with the length of the punishment part that has already beencertified and who may not want a further court hearing. ECHR case law establishes that a partymay waive his Article 6 rights provided that such a waiver is unequivocal and is attended byminimum safeguards commensurate to its importance (see for example, Potrimol v France (1993)).Those prisoners who did not choose to waive their right in this way, would have the additional rightto refer their case for a hearing.

47. It is envisaged that, where possible, hearings would be heard before the original trial judge.Ministers would be under a duty to send a copy of the indictment, a copy of any report by the trialjudge, a copy of any certificate certifying the designated part and any other relevant information tothe High Court no later than two weeks after the referral. A copy of these documents would also bemade available to the prisoner and to the Lord Advocate as the representative of the Crown. Thiswould include any report by the trial judge, which would not previously have been disclosed to theprisoner, on the basis that this would be provided for the purposes of a hearing only.

48. At the hearing, the court would make an order specifying that part of the sentence whichwould be considered to be the punishment part. The punishment part would form part of theprisoner’s sentence and would therefore be appealable in the usual way.

49. Prisoners who had already been released on licence by the time the Bill came into forcewould be integrated into the new system by being deemed to have been released under section 2(4)of the 1993 Act. They would therefore be regarded as having already served their punishment partand would be subject to the new provisions for all purposes thereafter.

The Transitional Provisions for Existing Life Prisoners Recommended for Release

50. The Bill makes additional special provision for existing life prisoners in the followingcircumstances:



• Those for whom the Scottish Ministers have fixed a provisional release date (“PRD”), inthe light of a recommendation in favour of release from the Parole Board and afterconsulting with the judiciary, before the Bill comes into force;

• Those for whom the Parole Board has recommended release and the judiciary havestated that they are content that the criminal justice requirements of punishment anddeterrence will be satisfied if the prisoner is released in accordance with the timingrecommended by the Board.

51. The general transitional provisions in the Bill make the necessary provision for thearrangements for a court hearing to set the punishment part. Although all eligible existing prisonerswould be entitled to a court hearing, it may be the case that, in practical terms, those prisoners in thetwo categories noted above may be eligible to be released before a hearing can be arranged in theircase. These additional special provisions therefore ensure as far as possible both that the prisoner isnot prejudiced as a result of the new system and that there is due consideration of risk to the publicbefore his release. If release proceeds under these transitional provisions the prisoner would betreated as if he had been released under the new system. The additional provisions would notextend to prisoners who had received a recommendation on release from the Parole Board butwhose case had not yet been referred to the Judiciary. Those prisoners would receive a courthearing under the general transitional provisions to fix a punishment part.

52. Where a PRD has been fixed by the Scottish Ministers, the prisoner would be released onthe PRD and would be deemed to have served his punishment part and to have been released onlicence under section 2(4) of the 1993 Act. This provision is subject to an exception in relation toadverse developments. An “adverse development” is anything which occurs before a prisoner isreleased which throws doubt on the prisoner’s suitability for release (e.g. absconding, failing adrugs test etc which suggest a heightened risk). The special transitional provisions provide that, ifthere is such a development, the Scottish Ministers may refer the prisoner back to the Parole Board,who would reconsider the case sitting as a tribunal. This would allow the Scottish Ministers tomonitor the prisoner’s progress during the period before the PRD is reached and to satisfythemselves that there would not be an unacceptable risk to the public from that release.

53. The Board would be able to direct Ministers by confirming the prisoner’s PRD or to directthat it should no longer apply. In the latter case, the prisoner’s punishment part would be deemed tohave been served on the day preceding the PRD and, under the normal arrangements that wouldthen apply to all life prisoners, his case would be referred to the Parole Board sitting as a tribunal toconsider whether or not he should continue to be detained. This would take place immediately afterthe PRD. Where the Parole Board confirmed the PRD, the Scottish Ministers would be able to re-refer the prisoner to the Board if any further adverse development arose before release.

54. Where a prisoner had already received a favourable recommendation from the Parole Boardand the judiciary had stated that the time served satisfied the criminal justice requirements ofpunishment and deterrence, the prisoner would be released on the date recommended by the Boardand would be deemed to have served his punishment part and to have been released on licenceunder section 2 (4) of the 1993 Act. Since, in those cases, the Scottish Ministers would not have



had an opportunity to consider the Board’s recommendation, the Bill provides an additional powerfor the Scottish Ministers to refer the case to the Parole Board sitting as a tribunal not later than twoweeks after the Bill came into force if they considered there was any information that suggested theprisoner would not be safe to release. In relation to this review, the Board would have similarpowers to those that would apply in relation to adverse developments i.e. to direct that the PRDshould be adhered to or to direct that the PRD should no longer apply. The provisions coveringadverse developments would also apply to these prisoners.

55. The special provisions in relation to existing life prisoners with a provisional release datewould cease to have effect in relation to a prisoner’s case as soon as a punishment part was fixed bythe judiciary at a hearing.

Practical Arrangements

56. Since the arrangements proposed for existing prisoners would create a considerable amountof work for the judiciary and the Parole Board, discussions have been held with the Lord JusticeGeneral and the Board in relation to management of the work which will be involved in setting thepunishment parts for all existing prisoners and the review by the Board of those cases where thepunishment part has expired. No member of the judiciary has expressed any view about thecompatibility or otherwise of our proposals with ECHR.

Transferred Life Prisoners

57. In addition to life prisoners who are sentenced in Scotland, other life prisoners may betransferred to Scotland to serve their sentences. Such transfers are made on compassionate groundsto enable the prisoner to be closer to family and friends. The 1993 Act sets out the basis upon whichScottish early release law applies in these cases. The Bill deals with arrangements for both existingand future transferred prisoners. The general intention is to ensure that prisoners who aretransferred to Scotland are properly integrated into the new release system.

58. A transferred life prisoner is defined in the 1993 Act as a person who has been transferred toScotland from another part of the United Kingdom, from other countries under repatriationarrangements or under military rules and has one or more sentences of imprisonment or detentionfor an indeterminate period imposed by those jurisdictions.

59. The Crime (Sentences) Act 1997 makes provision for the transfer of prisoners betweendifferent jurisdictions in the United Kingdom. Schedule 1 to that Act provides that a prisonershould be transferred on either a ‘restricted’ or ‘unrestricted’ basis. A restricted transfer means thatthe prisoner remains subject to the law governing release of the place from which he wastransferred. For example, prisoners transferred from England to Scotland on a restricted basisremain subject to the early release provisions contained in the Criminal Justice Act 1991. Anunrestricted transfer means that the prisoner is subject to the law of the place to which he istransferred. Such transfers are subject to a policy statement and underlying principles which wereagreed by Ministers and announced in October 1997. This policy establishes that a transfer will



take place on an unrestricted basis when that would have no effect on the sentence or on post-release supervision requirements. An unrestricted transfer is therefore more likely where there areno differences in sentencing process between jurisdictions.

60. Authority to take the decision on whether to transfer a prisoner to Scotland from another partof the United Kingdom and to decide whether the transfer should be restricted or unrestricted restswith the relevant Secretary of State. The Scottish Ministers’ consent is not required to a transfer,however, in practice, transfers do not take place unless consent has been obtained from theMinisters of both jurisdictions.

61. The existing system in the 1993 Act for the treatment of transferred life prisoners enablesthe Scottish early release system to apply to repatriated prisoners, military prisoners and prisonerswho have been transferred from another part of the UK on an unrestricted basis. At present (andsubject to the special arrangements discussed below that are made for unrestricted prisonerstransferred from England and Wales), where the prisoner is the equivalent of a discretionary lifeprisoner or an under 18 murderer, the Lord Justice General certifies the appropriate punishment partthat should apply to the prisoner. Thereafter he is treated as a Scottish designated life prisoner.

62. Special arrangements apply to under 18 murderers and discretionary life prisoners who aretransferred from England and Wales on an unrestricted basis. These prisoners will already have a“punishment part” fixed under the equivalent English legislation (section 28 of the Crime(Sentences) Act 1997 and in future section 82A of the Powers of Criminal Courts Sentencing Act2000). It is therefore unnecessary for the Lord Justice General to fix a punishment part. Section10(1) of the 1993 Act makes provision for the English punishment part to be recognised as aScottish punishment part. The prisoner is thereafter treated in the same way as a designated lifeprisoner sentenced in Scotland.

63. Adult mandatory life prisoners who are transferred to Scotland under repatriationarrangements, military rules or from other parts of the United Kingdom on an unrestricted basis aretreated in the same way as AMLPs sentenced in Scotland are at present. They are normally referredto the PRC in the first instance who recommend a date for review by the Parole Board to theScottish Ministers.

Future Transferred Prisoners

64. The Bill provides that adult mandatory life prisoners who are subject to Scots law by virtueof being transferred under repatriation arrangements, military rules or on an unrestricted basis fromanother part of the United Kingdom, should be subject to similar arrangements to those proposedfor Scottish AMLPs. Following the prisoner’s transfer to Scotland, the Scottish Ministers wouldrefer the case to the High Court for a hearing to have a punishment part set. The court would takeaccount of any report by the original trial judge if available. If the prisoner was transferred fromEngland or Wales on an unrestricted basis, any administrative tariff that had been set by the HomeSecretary would be superseded by the punishment part set by the Scottish court at the hearing.



65. For under 18 murderers and discretionary life prisoners transferred to Scotland fromEngland or Wales on an unrestricted basis, the 1993 Act would continue to recognise thepunishment parts that had been set in England and Wales for the purposes of the application ofScottish law to these prisoners.

66. Provision is also made for future transferred discretionary prisoners from England andWales who have a ‘tariff’ that was certified by the Secretary of State under English and Welshtransitional arrangements for discretionary life prisoners. It is no longer appropriate to recognise atariff or punishment part that has not been set by an Article 6 compliant court at first instance. Thearrangements for these prisoners reflect those outlined above for Scottish designated life prisonerswith a punishment part set following a paper exercise. The prisoner would be entitled to a courthearing but would also have the opportunity to waive his right to a hearing if he was content withthe part that had been certified by the Secretary of State.

67. For restricted prisoners who transferred from another part of the United Kingdom toScotland in future, the law of the sending jurisdiction governing release would continue to applyand the Bill therefore makes no provision.

Existing Transferred Prisoners

68. Existing transferred AMLPs who were transferred to Scotland on a restricted basis continueto be dealt with under the provisions of the law of the transferring jurisdiction and the Bill thereforemakes no provision for those prisoners. Existing AMLPs who were transferred under repatriationarrangements, military rules or from another part of the United Kingdom on an unrestricted basis,require to be integrated into the new Scottish system. They would be subject to similararrangements to those proposed for existing AMLPs sentenced in Scotland and future transferredprisoners. As soon as practicable after this Part of the Bill comes into force the Scottish Ministerswould refer the case to the High Court for a hearing to have a retrospective punishment part set. Thecourt would take account of any report by the original trial judge if available. If the prisoner wastransferred from England and Wales on an unrestricted basis any administrative tariff that had beenset by the Home Secretary would be superceded by the punishment part set by the Scottish court atthe hearing.

69. The Bill also provides for existing transferred discretionary life prisoners and under 18murderers who had a punishment part certified by the Lord Justice General following their transfer.As is the case with existing discretionary life and under 18 murderers sentenced in Scotland, it is nolonger considered appropriate to recognise a certified punishment part. The Bill therefore makesprovision for these prisoners to have a court hearing (subject to the possibility of the prisonerwaiving the right to a hearing) so that the punishment part can be set in open court. Similarly, theBill makes provision for existing transferred discretionary prisoners with a tariff that was certifiedby the Secretary of State under English and Welsh transitional arrangements. These prisoners willalso be entitled to have a court hearing to have the punishment part set in open court or to waive theright to a hearing.



Alternative approaches

70. As recorded above, the Executive considers that the existing statutory arrangementsgoverning the release of AMLPs are vulnerable to successful challenge and consequently considersthat the best approach is to bring those arrangements into line with the existing arrangements forother life prisoners, which are ECHR compliant.

PART 2 - CONSTITUTION OF THE PAROLE BOARD

Present Arrangements - appointment, reappointment and removal of Parole Board members

71. At present, the Parole Board advises the Scottish Ministers in relation to any matters thatthey refer to it in connection with the early release or recall of prisoners. In particular, it advises theScottish Ministers about the release of Adult Mandatory Life Prisoners (“AMLPs”) and has thepower to direct the Scottish Ministers in relation to the release of discretionary life prisoners andthose convicted of murder committed when under the age of 18. The Board sits as a tribunal whenreviewing cases in the latter category.

72. Paragraph 1 of Schedule 2 to the 1993 Act provides that the Parole Board shall consist of achairman and no fewer than four other members appointed by the Scottish Ministers. Paragraph 2of Schedule 2 to the 1993 Act specifies the members that must be included in the Parole Board.These are a Lord Commissioner of Justiciary (a High Court Judge), a registered medical practitionerwho is a psychiatrist, a person appearing to the Scottish Ministers to have knowledge andexperience of the supervision or aftercare of discharged prisoners and a person appearing to theScottish Ministers to have made a study of the causes of delinquency or the treatment of offenders.At present, the Board has 17 members. In terms of the 1993 Act, the Scottish Ministers determinethe remuneration and allowances that are paid to members of the Board.

73. Currently, all appointments, with the exception of that for the Lord Commissioner ofJusticiary, operate essentially in the same way and follow guidance issued by the Commissioner forPublic Appointments. Appointments are advertised normally in either national or specialist pressand applicants are issued with a job and person specification and are invited to complete a standardapplication form.

74. Applications are sifted and candidates shortlisted by Scottish Executive officials or someonehired for the purpose (in the past the function has been carried out by an ex-civil servant). A sampleof those applications not shortlisted is checked to ensure that a consistent standard has been appliedthroughout. An advisory panel (consisting of senior civil servants and an independent adviser) thendecides which candidates should be interviewed, carries out the interviews and ranks candidates.The advisory panel then reports to the Scottish Ministers and a recommendation is made toMinisters by the Justice Department.

75. The appointment of the Lord Commissioner of Justiciary is not advertised. Instead,consultation takes place with the Lord Justice General. A Sheriff is usually appointed to the Board.



Recently the practice has been to circulate Sheriffs and recently retired Sheriffs asking forexpressions of interest with candidates being interviewed by an advisory panel. The Panel thenmakes a recommendation for appointment and the Justice Department consults the ScottishMinisters, who make the decision on the appointment.

76. Paragraph 3 of Schedule 2 to the 1993 Act provides that a member of the Parole Board shallhold and vacate office under the terms of the instrument under which he was appointed. Eachinstrument of appointment specifies the duration of the appointment. At present, appointments arenormally for a three-year term with an expectation of reappointment for a further three-year term.The appointment may be terminated by the Scottish Ministers at any time prior to the expiry of theterm on the basis of physical or mental illness, failure to attend regularly to the business of theBoard and inability, unfitness or unsuitability to continue in the post. In addition, although the Actstates that there is eligibility for reappointment to the Board, it gives no indication of the criteriathat will be applied in considering reappointment.

ECHR Background

77. When considering the release of a designated life prisoner (and in the future the release ofadult mandatory life prisoners) and when reviewing decisions to recall designated life prisoners tocustody, the Parole Board sits as a tribunal. This is in order to satisfy the ECHR requirement thatthe continued detention of such prisoners is reviewed by a court-like body at reasonable intervalsafter the punishment part of their sentence has expired.

78. At tribunal hearings officials from the Scottish Executive Justice Department represent theviews of the Scottish Ministers. The prisoner is entitled to be present at the hearing and is normallylegally represented.

79. When the Parole Board sits as a tribunal, it must satisfy the independence and impartialityrequirements of Article 6 of ECHR.

80. In the case of Findlay v UK [1997], the European Court of Human Rights set out the wellestablished ECHR test for independence and impartiality:

“In order to establish whether a tribunal can be considered “independent” regard must behad inter alia to the manner of appointment of its members and their term of office, theexistence of guarantees against outside pressures and the question of whether the bodypresents an appearance of independence.”

81. In Starrs v Ruxton [2000] (“Starrs”), the High Court of Justiciary held that a temporarySheriff did not satisfy the ECHR requirements of independence and impartiality since he did nothave security of tenure. His appointment was only for one year, he could be removed by theScottish Ministers at any stage, or, as an alternative to his removal, he could be given no work.Additionally, reappointment was expected but was in the hands of the Scottish Ministers and therecould therefore be an appearance of partiality towards the Scottish Ministers.



82. In Clancy v Caird [2000] (“Clancy”), it was held that a temporary judge of the Court ofSession constituted an independent and impartial tribunal. The term of appointment, which isnormally for three years, was regarded as short but unobjectionable. Lord Sutherland stated that:

“Judges in the ECHR itself are appointed for a fixed term of between three and nine years.Accordingly, it appears to me clear that there can be no objection per se to the appointmentof judges for a fixed term, provided that during the period there is a security of tenure whichguarantees against interference by the executive in a discretionary or arbitrary manner.”

83. Other factors that led to temporary judges being regarded as ECHR compatible included thefact that the allocation of their work was in the hands of the Lord President rather than theExecutive. Additionally, a temporary judge had no expectation of reappointment at the end of histerm and there was not therefore an appearance of dependence on the Executive.

84. The provisions for appointing and removing temporary sheriffs were repealed following thedecision in Starrs, in the Bail, Judicial Appointments etc. (Scotland) Act 2000 and newprovisions for part-time sheriffs are laid out in the same Act. The Act provides that in makingappointments and reappointments, the Scottish Ministers must comply with requirements as toprocedure and consultation that may be prescribed in regulations made by them. Appointment isinitially for a five-year term. Reappointment is mandatory unless one of a number of conditionsapplies. Removal from office is only by order of a tribunal appointed by the Lord President of theCourt of Session. Similar, though not identical, provisions were made in relation to theappointment and removal from office of Justices of the Peace.

85. The Executive considered, in the light of the case law, whether the existing terms of ParoleBoard members were ECHR compliant. There has never been any specific court scrutiny of thearrangements for reappointment and removal of members. Lord Reed indicated in Starrs thattribunals are not always subject to the same demanding standards as the ordinary criminal court.Nevertheless, the decision-making powers of the Parole Board are of the utmost importance as theyconcern the liberty of an individual. The possibility of reappointment at the discretion of theExecutive immediately after the initial term, together with the possibility of removal by theExecutive could be seen as incompatible with Article 6(1). The Executive therefore takes the viewthat it is right that the appointment and removal procedures for members of the Parole Board shouldbe subject to similar safeguards as apply to other types of judicial appointment.


86. The proposals in the Bill are designed to enhance the security of tenure of Parole Boardmembers and ensure that the reappointment and removal of members is not at the discretion of theScottish Executive and accordingly does not give rise to the appearance of either dependence uponor partiality towards the Executive. The proposals have some similarities with the newarrangements for part-time sheriffs.



87. Appointments would still be made by the Scottish Ministers but in accordance withprocedures to be specified in regulations. This ensures that there is transparency in the appointmentprocess. It is envisaged that regulations would specifically provide for the existing independentinvolvement in the appointment process. The term of appointment would be not less than six andnot more than seven years with no automatic right to reappointment. Reappointment would bepermitted once, but only after a gap in service of six years. It is intended that regulations wouldrequire the former member to go through the same application and selection process as newapplicants.

88. The Chairman of the Parole Board would be given the task of seeking to ensure that everymember of the Board was given the opportunity of at least 20 days of work each year. Thisprovision is designed to make it clear that the allocation of work to individual Board members is theultimate responsibility of the Chairman, not the Scottish Ministers. Parole Board members wouldbe entitled to resign at any time should they choose to do so. They would cease to be a member ofthe Board and would become ineligible for reappointment when they reached the age of 75.

89. The Executive proposes that a Parole Board member may only be removed from office byan independent tribunal on the basis of inability, neglect of duty or misbehaviour. The tribunalwould mirror the composition and procedures of the tribunal that was provided for part-timesheriffs. The tribunal would consist of a Court of Session judge or Sheriff Principal, a person whois and has been legally qualified for at least 10 years and one other person, all appointed by the LordPresident of the Court of Session. Provision is made in the Bill for regulations to specify thetribunal’s procedure and to enable it to suspend a member under investigation.

Transitional Arrangements

90. The transitional provisions seek to integrate existing Parole Board members into the newsystem and ensure that existing members will be subject to the new system in the same way as newmembers. Existing members would be subject to the new removal provisions. So far as the termsof the appointments are concerned, some existing members were selected following a publicadvertisement in a national newspaper seeking application for membership of the Board. Memberswhose current term began in this way would be entitled to serve for a six-year period, running fromthe start of the current term, and any previous periods of appointment would be disregarded.Members whose current term does not follow a response to a newspaper advertisement would beentitled to serve for six years from the date when they were first appointed as a member of theBoard, or for the period that is specified in their existing instrument of appointment, whichever isthe latest.

Alternative Approaches

91. The Executive considers that, in the light of the decision in Starrs, there is a risk that thecurrent system of appointment, reappointment and removal of Parole Board members may notcomply with the independence and impartiality requirements of Article 6 of the ECHR, when theBoard is sitting as a tribunal. When the Board is sitting as a Designated Life Tribunal directing therelease of prisoners it must comply with Article 6 of the Convention. Since not all members of the



Parole Board sit when the Board is constituted as a tribunal, the possibility of having one set ofappointment procedures for tribunal members and one for those that did not sit on tribunals wasconsidered. However, essentially all Parole Board members are potential tribunal members and itwould not be practical to have two different sets of procedures.

92. Consideration was also given to leaving the term of appointment at 3 years with anautomatic right to a further appointment of three years. However extending the term to between sixand seven years further enhances security of tenure. It would have been possible to prohibitreappointment at the end of the initial term. However, it is considered that the requirement of a six-year interval prior to reappointment together with the planned inclusion in regulations of arequirement to undergo the full application and selection process removes any realistic perceptionthat Board members might show partiality towards the Executive in order to ensure theirreappointment.

PART 3 - LEGAL AID

Fixed payments - exceptional cases

Present Arrangements - Power to exempt cases from the Fixed Payments Scheme

93. Regulations made under section 33(3A) of the Legal Aid (Scotland) Act 1986 (“the 1986Act”) provide for a system of fixed payments in summary criminal proceedings where legal aid hasbeen made available. This system (“the fixed payments scheme”) has applied to summary criminalcases since 1 April 1999. Under this scheme, a solicitor representing a client who is eligible forlegal aid receives a fixed payment covering his fee and certain prescribed outlays.

94. For many years, solicitors were paid on a “time and line” basis, that is, they were paid by theScottish Legal Aid Board (“the Board”) based on the number of hours spent on a case, includingtravel and waiting time in court, plus any outlays such as medical reports and precognitions. Whilstthe Board could seek to abate accounts from solicitors, the average cost of a summary criminal caserose in real terms every year. The Government was concerned about the steadily increasing costs ofsummary criminal legal aid, from £16.7m in 1987/88 to £57.4m in 1995/96 and in the Crime andPunishment (Scotland) Act 1997 took powers to set fixed payments.

95. The fixed payment scheme allows a solicitor to claim £500 from the Scottish Legal AidBoard for acting in the Sheriff Court for an accused who has been granted a summary criminal legalaid certificate. This covers all work up to and including the first 30 minutes of trial. This feeincludes any precognitions that may be needed and any photocopying. It does not include VAT,travel expenses, counsel’s fees, and outlays, such as medical reports. Additional fees may beclaimed if a trial lasts more than 30 minutes (£100), goes into a second day (£200) or third day(£400). An extra fee of £50 is paid if the case arises in a number of distant courts, such as FortWilliam and Portree. A lower scale of fees is payable if the case arises in the District Court.



96. The fixed payment scheme does not require solicitors to maintain detailed accountingrecords to present to the Board, nor are law accountants needed to construct such accounts.Solicitors are paid the appropriate fees, irrespective of the work undertaken.

97. During the consultation process leading to the scheme, considerable thought was devoted toidentifying complex cases, which could be excluded. It proved impossible to define a complex casein such a way that it could be set out in regulations. However, the view was taken that complexcases tended to be of longer duration. Therefore, as a measure of complexity, it was decided to setincreasing fees for trial days, as indicated above.

98. Certain proceedings are excluded from the scheme, such as solemn cases reduced tosummary, and references under the Scotland Act.

ECHR Background

99. Article 6(3)(c) of the ECHR requires that everyone charged with a criminal offence who hasinsufficient means to pay for legal assistance has the right to free legal assistance when the interestsof justice so require. ECHR case law has clarified that legal assistance for the purposes of Article6(3)(c) must be effective. For example, in the case of Artico v Italy [1981] it was confirmed thatthe ECHR was intended to guarantee not rights that are theoretical or illusory, but rights that arepractical and effective.

100. In approximately 40 summary criminal cases, the fixed payment scheme has beenchallenged on the basis that the payments which can be made under the Scheme result in theaccused not being effectively represented, therefore breaching Article 6.

101. One decision has been reached by the High Court – the case of Procurator Fiscal (FortWilliam) v Norman MacLean and Peter MacLean [2000]. While the Court considered that ingeneral the scheme was compatible with ECHR, it did consider that it could give rise to cases wherethere was a breach of Article 6(3)(c). The circumstances in which the court could envisage thefixed payment scheme resulting in a breach of ECHR would have to be a case where an individualcould point to facts and circumstances and say with justification that he was so disadvantaged thathis legal assistance was not effective for the purposes of Article 6(3)(c). The Court gave no specificguidance on the types of case this might cover. This judgement is now under appeal to the JudicialCommittee of the Privy Council – a decision is not expected for some time.


102. To ensure that the provision of legal aid for defended summary criminal proceedingscomplies with ECHR, it is proposed that the Board should be given a discretion (on application by asolicitor) to remove cases from the fixed payment scheme where an accused would be deprived ofthe right to a fair trial as a result of the solicitor being paid under the scheme. These cases wouldrevert to “time and line” payment. It is considered that this would apply in a small number ofexceptional cases. It is estimated that complex cases of this kind would cover only about 1% of



summary criminal legal aid cases i.e. around 500 cases per annum. It is intended that a solicitormust apply at the earliest opportunity to the Board, in a form to be decided by the Board, for a caseto be removed from the fixed payment scheme. In this way the solicitor will have early reassurance- where appropriate - about the basis of payment.

103. It is not intended that the solicitor would receive part time and line payment and part fixedpayment for a case. In any case where the Board has exercised its discretion and agreed that itwould be appropriate for the case to be dealt with on a time and line basis, the whole case would beassessed on this basis.

104. It would clearly be appropriate to pay fees only if based on proper records of time spent on acase and thus it would be necessary for full and proper time and line accounts to be submitted to theBoard.

105. To enable the Board to identify cases where it would be appropriate to exercise this power, itis proposed that the Scottish Ministers be given a regulation making power that would set out thefactors the Board should take into account. These would be likely to include factors like thecomplexity of the case, number of prosecution witnesses, preparation costs and geographic locationof witnesses.

106. In recognition that the commencement of the power to exempt cases from fixed paymentscould be applied to ongoing cases at different stages of the summary criminal procedure, it isintended that the first set of regulations under this new power will apply retrospectively to suchcases. In addition, on similar grounds, the regulations may disapply any of the conditions forexemption from the fixed payments scheme to such ongoing cases. This will ensure that ongoingcases are treated fairly.


107. Many meetings were held with the Law Society of Scotland and the Scottish Legal AidBoard, both when the fixed payment scheme was being constructed and during the operation of thescheme, in an attempt to identify and pay for expensive and complex summary criminal legal aidcases. Consideration was given to prescribing extra fees for items such as the number ofprosecution witnesses. Another alternative would be to exclude entire classes of case, such as drugsor fraud, but such a “blanket” exemption could cover cases that were not complex and still omitother complex cases, perhaps an assault. It was agreed between all parties that this would make thefixed payments scheme over-complicated. Therefore, it was decided that the best approach wouldbe to exclude a small number of significantly complex cases, amounting to about 1%, from thefixed payments scheme, as described above.

Retrospective Revision of Fixed Payments Regulations

108. It normally takes about 6 months for a defended summary case to be concluded. There aretherefore about 30,000 defended summary criminal legal aid cases - at various stages - in the justice



system at any one time. It is proposed that any amendments to the fixed payments scheme in thefuture should be capable of being applied to any ongoing case. This will ensure that existing caseswould benefit from any changes to the scheme, including exceptional cases (as above).

Extension of Advice and Assistance and Civil Legal Aid

Present arrangements

109. There are 3 forms of legal aid under the 1986 Act which apply to civil issues:

• Advice and assistance, that is, legal advice by a solicitor;• Assistance by Way of Representation (“ABWOR”), that is, representation in court or other

hearing by a solicitor;• Civil legal aid, that is, detailed investigation by a solicitor, obtaining reports and

representation in court.

110. Legal advice and assistance is available for general advice on the application of Scots lawto any particular circumstances that have arisen in relation to the person seeking advice. This wouldinclude a person seeking advice in relation to the determination of civil rights and obligations by acourt or tribunal. Legal advice is therefore available to anyone who meets the financial test,irrespective of the forum in which the issue may arise, but a contribution may be required.

111. ABWOR is available under the Advice and Assistance (Assistance by way ofRepresentation) Regulations 1997 for specified hearings and courts. These include Parole Boardhearings, civil proceedings arising from a failure to pay a fine and appeals under the Proceeds ofCrime (Scotland) Act 1995. There is only a financial test but other conditions may apply inparticular proceedings. For example, in order for a solicitor to provide ABWOR in a summarycriminal case, he or she has to be satisfied that the accused is likely to be deprived of liberty orlivelihood.

112. Civil legal aid is available for proceedings in the Judicial Committee of the Privy Council,House of Lords, Court of Session, Land Court, Lands Valuation Appeal Court, and the SheriffCourt. In addition, proceedings before the Land Tribunal for Scotland and the Employment AppealTribunal are eligible for civil legal aid. The Scottish Ministers believe that these Tribunals haveparticularly complex issues to resolve and, for that reason, civil legal aid should be made available.

113. Most applications for civil legal aid have to meet the three statutory tests of probabiliscausa, reasonableness, and financial eligibility. The exceptions are applications under theConvention on the Civil Aspects of International Child Abduction and the European Convention onRecognition and Enforcement of Decisions concerning custody of Children and on the Restorationof Custody of Children.



ECHR Background

114. Article 6(3) of the ECHR requires the provision of free legal aid in criminal proceedingswhere the interests of justice require it. There is no automatic right to legal aid in civil proceedings,although there have been civil cases, e.g. Airey v Ireland [1979] (“Airey”), where the failure toprovide legal aid has amounted to a breach of Article 6(1). In that case, the applicant complainedthat the unavailability of legal aid for judicial separation proceedings amounted to a violation of herright of access to a court under Article 6(1). It is considered that the factors which the EuropeanCourt of Human Rights took into account in holding that it was not possible for the applicant torepresent herself “effectively” were:

• the proceedings were complex, both as to procedure and law;• there was or may have been a need to establish contested facts by way of expert and/or

witness evidence; and• the applicant was emotionally involved in the proceedings, with the result that she did not

have the degree of objectivity required by advocacy in court.

115. On consideration of Airey, and other relevant case law, it is considered that refusal to makelegal aid available where a court or tribunal is determining civil rights and obligations may amountto a breach of Article 6(1) where:

• the applicant is unable to fund or find alternative representation elsewhere;• the case is arguable; and• the case is too complex to allow the applicant to present it to a minimum standard of

effectiveness in person.

116. It is considered that, in ECHR terms, reference to a “court or tribunal” in this context meansany proceedings in which civil rights and obligations are determined. This extends beyond what isunderstood by “court or tribunal” at domestic law.

117. The absence of legal aid where a person’s civil rights and obligations are being determinedby a court or tribunal has already been the subject of ECHR challenge. Several cases beforeemployment tribunals have argued that the failure to make legal aid available for these proceedingsamounts to a violation of the right to a fair hearing under Article 6(1).

Proposed arrangements

118. The Scottish Ministers propose to amend the 1986 Act to create the power to make civillegal aid or ABWOR available where there is, or may be, an ECHR requirement.

Understanding of “court or tribunal”

119. To achieve this aim, it is intended to widen the understanding of the term “court or tribunal”where it appears in the 1986 Act, so that it includes any proceedings, however described, which



determine a person’s civil rights and obligations. This will enable the Scottish Ministers toprescribe, using the existing regulation-making powers contained in the Act, the bodies,commissions, or organisations for which either ABWOR or civil legal aid may be available subjectto certain statutory tests being satisfied.

Scope of the extension of legal assistance

Civil Legal Aid and ABWOR

120. Powers already exist under section 13 of the 1986 Act for the Scottish Ministers to specifythe courts and tribunals to which civil legal aid may apply. These bodies are set out in Schedule 2of the Act. There is no intention to alter or restrict the availability of civil legal aid for those courtsand tribunals which are already set out at Part I of Schedule 2 to the 1986 Act.

121. Powers already exist under section 9 of the 1986 Act for the Scottish Ministers to makeABWOR available by regulation, under specified conditions, for courts, tribunals, and statutoryinquiries. The Advice and Assistance (Assistance by way of Representation) Regulations 1997 setout the proceedings and conditions that apply. It is intended that the wider understanding of thephrase “court or tribunal” that is to be introduced will allow for ABWOR to be made available forany proceedings where a person’s civil rights and obligations are determined. The regulation-making power contained at section 9(2)(c) already allows the Scottish Ministers to prescribe thecriteria to be applied in determining whether ABWOR should be provided, so there is no need for aprovision of the type proposed (at paragraph 123 below) in respect of civil legal aid. The ScottishMinisters are using the existing powers under section 9 to make ABWOR available for EmploymentTribunals, where additional Airey- type tests are met. This should come into effect on 15 January2001.

122. The Scottish Ministers believe that, in order to ensure compatibility with the Convention,legal aid need only be extended to cases that determine persons’ civil rights and obligations wherecertain criteria are met. Whether ABWOR or civil legal aid is made available will be determined bythe needs of the particular tribunal or other body.

123. As noted above (paragraph 121), the Scottish Ministers already have the power to makeABWOR available to certain tribunals under criteria prescribed in regulations. It is intended tocreate a regulation-making power, which will also allow the Scottish Ministers to set factors to beconsidered by the Board in assessing an application for civil legal aid on a similar basis to anycriteria for ABWOR. These factors will only apply to applications for civil legal aid before one ofthe additional proceedings for which civil legal aid is to be made available. The factors will operatein addition to the existing statutory tests, namely probabilis causa, reasonableness and financialeligibility. The additional criteria to be prescribed are likely to be based on Airey and may includethe following:

• that the proceedings are exceptionally complex;• that the applicant is unable to understand the proceedings;



• that a substantial point of law needs to be argued.

124. It is not envisaged that legal aid will have to be made available for a large number of newcases. For example in the case of tribunals, the proceedings are intended to allow the ordinaryindividual the opportunity to set out his or her case in an informal manner and using everydaylanguage. A tribunal does not have to rely on arguments from the parties alone in reaching adecision. This means that the procedure is more inquisitorial than the adversarial civil court. Theprocedures should be comparatively straightforward and it should not, in general, be necessary forpersons appearing before tribunals to have legal representation.

Employment of solicitors by SLAB

125. There have been 2 recent ECHR challenges to the Scottish Ministers where the accused hasbeen unrepresented because local solicitors have refused to provide representation as they considerthat the fees to be paid under the fixed payments scheme will not allow them to effectivelyrepresent their client. The provision for “exceptional” cases to be opted out of the fixed paymentscheme and receive payment under time and line (outlined above) will allow solicitors in such casesto apply to the Board to exercise its discretion thus removing this concern.

126. However, the Scottish Ministers remain concerned that there may still be cases in which anaccused is unrepresented. This may occur in the remoter parts of Scotland, for instance, if there areconflicts of interests in cases where there are multiple accused. Therefore to ensure that theprovision of legal aid in relation to defended summary criminal proceedings complies with Article6(3)(c), it is considered necessary to ensure that the Board can exercise its existing powers underSection 26 of the 1986 Act to employ solicitors to act for persons receiving legal aid. The Board,under the auspices of the Public Defence Solicitors Office (“PDSO”), already employs solicitors toprovide criminal legal assistance, but the PDSO is only a pilot operating in Edinburgh and will onlyexist until October 2003. The exercise of the power to employ solicitors under section 26 of the1986 Act is not intended to have any impact on the operation of the PDSO pilot.

127. It is proposed therefore that the Scottish Legal Aid Board be empowered to deploy its ownsolicitor in cases where, even under the new system of opting out of fixed payments, an accusedwould still otherwise be unrepresented. It is envisaged that anyone who cannot obtainrepresentation and feels that he or she should be granted legal aid, could approach the Board whowould assess eligibility in the usual way. If a summary criminal legal aid certificate is granted, theBoard will provide a solicitor. It is anticipated that leaflets explaining the arrangements would beavailable from Sheriff and District Courts as well as Citizens’ Advice Bureaux. Given the changesbeing made for exceptional complex cases, it is not expected that this power will be called on at allfrequently. However, it is considered that it should be available as a long-stop if all otherarrangements fail and this is the only way to ensure that a person, otherwise qualified for summarycriminal legal aid, receives representation.

128. In order to give effect to this policy, technical amendments are needed to the 1986 Act toensure that where solicitors are employed by the Board under section 26 to provide criminal legalaid, other relevant provisions of the 1986 Act will apply as appropriate. Solicitors so employed will



be subject to the same regime as it applies to PDSO solicitors employed under section 28A of the1986 Act.

PART 4 - HOMOSEXUAL OFFENCES

Present Arrangements

129. Section 13(1) of the Criminal Law (Consolidation) (Scotland) Act 1995 (“the 1995 Act”)provides that a homosexual act in private shall not be an offence provided that the parties haveconsented and have attained the age of 18 years (changed to 16 years in the Sexual Offences(Amendment) Act). Section 13(2)(a) of the 1995 Act provides that an Act which would otherwisebe treated for the purposes of the 1995 Act as being done in private shall not be so treated if donewhen more than 2 persons take part or are present. The effect of section 13(2)(a) is that it is anoffence for more than two consenting adult males to take part in homosexual acts in private.

ECHR Background

130. The English equivalent of section 13(2)(a) was recently successfully challenged in the caseof A.D.T. v the United Kingdom (application no. 35765/97) (“ADT”). On 31 July 2000, theEuropean Court of Human Rights found that section 13 of the Sexual Offences Act 1967 was, in theparticular circumstances of the case, a breach of Article 8 of the Convention.

131. The Court held that given the narrow margin of appreciation afforded to national authoritiesin cases involving intimate aspects of private life, that the absence of any public healthconsiderations and the purely private nature of the behaviour in the present case meant that thereasons submitted by the Government for the maintenance of legislation criminalising homosexualacts between men in private, and prosecution and conviction in the present case, were not sufficientto justify the legislation and the prosecution. In the light of the Court’s decision in ADT it is clearthat the equivalent Scottish provision in section 13(2)(a) of the 1995 Act is open to successfulchallenge on the basis that it is incompatible with Article 8 of the Convention.


132. The Bill repeals section 13(2)(a) of the 1995 Act which means that it will no longer be anoffence for more than two adult males to take part in consensual homosexual acts in private. In thelight of the ADT judgement there is no doubt that the proposed repeal is a necessary one.


133. It is considered that there is no alternative to the proposed repeal of section 13(2)(a). TheExecutive considers that this approach best meets ECHR requirements.



PART 5 - PROCURATOR FISCAL OF THE LYON COURT


134. Section 9 of the Lyon King of Arms Act 1867 (“the 1867 Act”) provides for the Lord Lyonto appoint the Procurator Fiscal of the Lyon Court. The Procurator Fiscal’s duties are to preventwrongful assumption of armorial bearings and other abuses of heraldic law, raising at his owninstance petitions and complaints in the Lyon Court in appropriate cases. Statutory offences canarise as a result of firms using and displaying a trade mark which consists of armorial bearingswhich have not been recorded in the Public Register of All Arms and Bearings in Scotland.

ECHR Background

135. It is thought that the Lord Lyon’s power to appoint the Procurator Fiscal may create a doubtas to whether the Lord Lyon in his judicial capacity can be seen to be entirely independent andimpartial in dealing with cases brought before him by the Fiscal, and thus whether the Lyon Courtcan be seen to be independent and impartial under Article 6 of the ECHR.


136. This Bill amends the 1867 Act to allow for the appointment of the Procurator Fiscal to theLyon Court to be made by the Scottish Ministers, who are independent of the Lyon Court.


137. No suitable alternatives are available.

PART 6 - POWER TO MAKE REMEDIAL ORDERS


138. Section 10 of the Human Rights Act 1998 (“HRA”) confers upon UK Ministers powers tomake remedial orders, i.e. to use subordinate legislation, to remedy certain legislative provisionswhich are or may be incompatible with ECHR. In addition, section 107 of the Scotland Act 1998confers upon UK Ministers the power by remedial order to make provision in consequence of anyAct of the Scottish Parliament (“ASP”) or subordinate legislation made under an ASP or any act ofthe Scottish Ministers, which, among other things, is or may be incompatible with ECHR.

139. The powers under section 10 of the HRA are available to the Scottish Ministers but only to alimited extent. They could only clearly exercise those powers where a Scottish court finds aprovision of a Westminster Act relating to devolved matters incompatible with ECHR or where theyconsider that a provision in a Westminster Act or ASP may be incompatible as a consequence of aStrasbourg decision taken after 2 October 2000.




140. The Executive proposes to confer a new power on the Scottish Ministers, which will extendthe range of circumstances under which they are able to make remedial orders to remedy actual orperceived incompatibilities with ECHR. Provision has therefore been made in the Bill for a generalremedial power.

141. The proposed new power will make available to the Scottish Ministers, remedial powerssimilar in scope to those already available to UK Ministers under section 107 of the Scotland Act.At present, for example, if a provision in an ASP or subordinate legislation made by the ScottishMinisters or any exercise of functions by the Scottish Ministers was either found by a court, or wasthought to be, incompatible, only UK Ministers would be in a position to make a remedial order torectify this. The proposals in the Bill are therefore intended to put the Scottish Ministers on asimilar footing with UK Ministers.

142. The new powers will allow the Scottish Ministers to make a remedial order to rectify theposition in consequence of any provision in an Act of the Scottish Parliament, an Act of theWestminster Parliament (relating to devolved matters), any subordinate legislation made under anysuch Act or any exercise or purported exercise of functions by the Scottish Ministers which is foundby a court to be, or is thought to be, incompatible with ECHR. The Bill also makes provision for aremedial order to have retrospective effect other than provision creating criminal offences orincreasing the punishment for criminal offences. This is necessary to ensure that actions whichhave already been taken under legislative provisions or functions which are or may be incompatiblecan be addressed by the order. In practice, it is quite likely to be the case that a provision orfunction will have been in use before it is either found to be incompatible by a court or found to beat risk of being incompatible by the Scottish Ministers.

143. The Scottish Ministers will therefore be in a position to make a remedial order in a widerrange of circumstances than they can at present under section 10 of HRA. For example they will beable to rectify

Provisions in an ASP which have been found by a Scottish Court to be incompatible with ECHR

Scottish courts have the power to declare that provisions in ASPs are ultra vires andtherefore void. In contrast, when a provision in Westminster legislation is found to beincompatible the courts may only make a declaration of incompatibility which does notaffect the validity of the provision. The Scottish Ministers are therefore more likely torequire to take urgent action to remedy the position. Without the proposed new power, theScottish Ministers would only be able to promote emergency legislation in the ScottishParliament or ask UK Ministers to make a remedial order by virtue of their powers under theScotland Act. In the latter case, the order would not be subject to scrutiny by the ScottishParliament. The Scottish Ministers do not consider either course of action to be desirable.



Provisions in a Westminster Act extending to Scotland which correspond to provisions in aWestminster Act extending to England and Wales which an English court in England and Wales hasdeclared to be incompatible and which UK Ministers have remedied by remedial order under theHRA

At present, the Scottish Ministers could not remedy the Scottish provisions by remedialorder since it was not those specific provisions which had been declared incompatible.Without the proposed new power, the Scottish Ministers would only be able to promoteemergency legislation in the Scottish Parliament or wait until a Scottish court declared thesimilar Scottish provisions to be incompatible. The Scottish Ministers do not consider eithercourse to be desirable.

Any exercise of functions by the Scottish Ministers found by a court to be incompatible with ECHRand ultra vires

Although it may be necessary to take urgent action to remedy the position, at present, theScottish Ministers would only be able to promote emergency legislation in the ScottishParliament or ask UK Ministers to make a remedial order by virtue of their powers under theScotland Act. Again, the Scottish Ministers do not consider either course of action to bedesirable.

Any provision in legislation or any function of the Scottish Ministers which is thought to beincompatible

Where there is a clear risk of incompatibility and accordingly a clear risk that the court maystrike down ASPs or actions by the Scottish Ministers, it may be necessary for Ministers totake early preventative action. Without the proposed new power, the Scottish Ministerswould again only be able to promote early or emergency legislation in the ScottishParliament or ask UK Ministers to make a remedial order by virtue of their powers under theScotland Act.

144. The Executive proposes to ensure that the exercise of this new power by the ScottishMinisters is properly controlled by the Scottish Parliament. The procedure provided for in the Billis therefore modelled upon the procedure for making remedial orders under Schedule 2 to the HRA.

145. The usual procedure for making a remedial order would be as follows –

• before laying a draft remedial order, the Scottish Ministers would be required to lay a copyof the proposed draft order, together with a statement of their reasons for proposing to makethe order, before the Scottish Parliament;

• the Scottish Ministers would be required to publicise the contents of the proposed draft orderand take into account any comments made upon that order within a period of 60 days (notcounting periods when the Parliament is dissolved or in recess for more than 4 days);



• a draft remedial order would then be laid before the Scottish Parliament for approval byresolution, together with a statement summarising all the observations which had been madeupon the proposed draft order and specifying any changes made to the draft order and thereasons for them.

146. There may be exceptional cases where the circumstances are so urgent that the ScottishMinisters would have to make a remedial order without observing the above procedure such aswhen the Parliament is or will be in recess at any time. In such urgent cases, the Scottish Ministerscould proceed immediately to make a remedial order but the following procedure would then befollowed –

• the Scottish Ministers would be required to lay the order forthwith, together with a statementof their reasons for having made it, before the Scottish Parliament, to give public notice ofthe contents of the order and take into account any observations submitted upon the orderwithin a period of 60 days;

• as soon as practicable after the end of that period, the Scottish Ministers would be requiredto lay before the Scottish Parliament a statement summarising all the observations made andspecifying the modifications, if any, which they considered appropriate to make to the order;

• if modifications were required, the Scottish Ministers would be required either to lay anotherremedial order before the Scottish Parliament which gave effect to those modifications andreplaced the first order or to lay an order which simply revoked the original remedial order;

• the Scottish Parliament would require to approve, by resolution, either the first or the secondremedial order within a period of 120 days (beginning with the day on which the first orderwas made) or the relevant order would cease to have effect. Where the second remedialorder revokes the first remedial order it is subject to annulment in pursuance of a resolutionof the Scottish Parliament.

147. In all except the most urgent circumstances therefore, the Scottish Parliament and any otherinterested parties would be given the opportunity to make comments on a draft of any order inadvance of the usual formal procedure for laying orders before the Parliament. The Executiveconsiders that the procedure provided for will ensure that the Parliament is able to exercise adequatecontrol of the Scottish Ministers' proposed powers.

PART 7 - GENERAL PROVISIONS

Commencement

148. Parts 1, 2 and 5 of the Bill in relation to adult mandatory life prisoners, the constitution ofthe Parole Board and the Procurator Fiscal of the Lyon Court would come into force bycommencement order. The other provisions would take effect the day after Royal Assent.



CONSULTATION

149. The Executive held discussions with the Lord Justice General, the Lord Lyon, the ScottishLegal Aid Board, the Law Society of Scotland and the Chairman of the Parole Board, whichcontributed to the development of our proposals. The Deputy First Minister wrote to the judiciaryand the Convener of the Justice and Home Affairs Committee on the day the proposals wereannounced.

150. Letters were also sent to the Chairman of the Parole Board, the Chairman of the ScottishLegal Aid Board, the President of the Law Society of Scotland, the Dean of the Faculty ofAdvocates and the Scottish Human Rights Centre. In addition, information was made available tothe Scottish Prison Service to inform AMLPs and for use in answering their queries.

151. On introduction, further information was made available to the Scottish Prison Service andall life prisoners affected by the Bill. In addition, the following bodies and individuals werenotified of our proposals by letter and sent copies of the draft Bill and accompanying documents:

APEXAssociation of Chief Police Officers in ScotlandAssociation of Directors of Social WorkAssociation of Scottish Police SuperintendentsAssociation of Visiting Committees for Scottish Penal EstablishmentsBritish Medical AssociationBritish Association of Social WorkersChief Inspector of Prisons for ScotlandCitizen’s Advice ScotlandCommunity Psychiatric Nurses AssociationConvention of Scottish Local Authorities (CoSLA)Crown AgentDean of the Faculty of AdvocatesDistrict Courts AssociationGeneral Manager, State HospitalHome OfficeHoward LeagueJudicial Studies CommitteeLord Justice GeneralLord LyonMain political partiesMental Welfare Commission for ScotlandPart Time Sheriffs' AssociationPrison Reform TrustPrison Complaints CommissionerPrison GovernorsPrison Officers Association (Scotland)Procurators Fiscal Society



Parole Board for ScotlandProfessor Gane, University of AberdeenRoyal College of PsychiatristsSACROScotland OfficeScottish Association of Health CouncilsScottish Association for Mental HealthScottish Civic ForumScottish Convention of Mental Health CharitiesScottish Council for Civil LibertiesScottish Council for Voluntary OrganisationsScottish Court ServiceScottish Development Centre for Mental Health ServicesScottish Health Advisory ServiceScottish Legal Aid BoardScottish Human Rights CentreScottish Law CommissionScottish Police CollegeScottish Police FederationScottish Prisons Complaints CommissionScottish Prison ServiceScottish Trade Union CongressSheriffs’ AssociationThe Controller of the Accounts CommissionThe Law Society of ScotlandThe Lord Chancellor’s DepartmentThe WS SocietyWomen’s National CommissionWide range of churches and religious organisationsWide range of gay/lesbian organisationsWide range of organisations who provide support for the victims of crime

EFFECT ON EQUAL OPPORTUNITIES

152. There would be no effect on equal opportunities.

EFFECT ON HUMAN RIGHTS

153. The purpose of the Bill is to bring elements of scots law into line with the EuropeanConvention on Human Rights.



EFFECT ON ISLAND COMMUNITIES

154. Most of the provisions in the Bill will have no distinctive effect on island communities.These communities would be affected in the same way as any other community by most of theBill’s proposals. However, the provision relating to direct employment of solicitors may have aparticular value in more isolated communities.

155. In more remote parts of the country a person may have more difficulty obtaining a solicitorbecause there are insufficient solicitors or because there is a conflict of interest because of multipleaccused. This is one of the reasons, outlined above, that the Scottish Executive believes that theScottish Legal Aid Board should be empowered to directly employ solicitors to deal with situationswhere a client is otherwise unable to gain representation under the fixed fees scheme.

EFFECT ON LOCAL GOVERNMENT

156. There would be no effect on local government.

EFFECT ON SUSTAINABLE DEVELOPMENT

157. There would be no effect on sustainable development.


SP Bill 25-PM Session 1 (2001)

CONVENTION RIGHTS (COMPLIANCE) (SCOTLAND)BILL

POLICY MEMORANDUM

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